SHRI NARYANA BHAU SALVE SINCE DECD. THR LEGAL HEIRS AND ANR vs SHRI KHANDU BABURAO SALVE SINCE DECD THR LEGAL HEIRS AND ANR

Judgment text excerpt

2025:BHC-AS:22591 wp 11400 of 2022.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.11400 OF 2022 Narayan Bhau Salve (deceased) through legal heirs Balkrushna Narayan Salve and Ors. … Petitioners versus Khandu Baburao Salve (deceased) through legal heirs Devidas Khandu Salve and Ors. … Respondents Mr. Anil Anturkar, Sr. Advocate i/by Mr. Prathamesh Bhargude, for Petitioners. Mr. Vikram Walawalkar i/by Mr. Sambhaji Kharatmol for Respondent Nos.2a and 2c. CORAM: N.J.JAMADAR, J. RESERVED ON : 17 MARCH 2025 PRONOUNCED ON : 9 JUNE 2025 JUDGMENT : 1. Rule. Rule made returnable forthwith and, with the consent of the parties, heard finally. 2. Whether the principle of merger applies to the dismissal of the appeal for want of prosecution so as to reckon the period of limitation for the execution of the decree impugned therein, from the date of such order by the appellate Court, is the question that arises for consideration in this Petition under Article 227 of the Constitution of India ? 3. Shorn of superfluities, the background facts in which the aforesaid question crops up for consideration, can be summerized as under : SSP 1/29 wp 11400 of 2022.doc 3.1 Defendant No.1 was the holder of the land bearing Gat No.50 admeasuring 39 Are with a right to draw water from the well situated in Gat No.49, at Mauje Sakuri Tarfe Belhe, Tal. Junnar, Pune (the suit property). Defendant No.1 executed a mortgage by conditional sale on 21 February 1966 in favour of Pandu Khandu Salve (D2) and raised a loan of Rs.500/- thereon. As Defendant No.1 was in need of more money, Defendant No.1 executed an Agreement for Sale of the suit property for a consideration of Rs.2,750/-, on 24 February 1967. A sum of Rs.500/- was accepted thereunder towards part conside